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March 17, 2007

SSRN downloads rankings and blogs

I consider the Social Science Research Network (SSRN) a terrific service that, like some academic blogs, provides effective access to lots of scholarly insights in a timely fashion. I often see important sentencing scholarship on SSRN months before it appears in print (and I'm on an SSRN advisory board). I am especially grateful I can share with readers what I find on SSRN (unlike some stuff I find/access via other on-line sources/collections).

However, the counting features at SSRN provides another means to rank academics, and a recent emphasis on SSRN download rankings can have a pernicious effect (as Jeff Harrison notes here at MoneyLaw). Candidly, I admit to have a self-serving reason for being troubled by rankings of SSRN download counts: I typically provide direct access to my scholarship on this blog before sending it to SSRN. I fear that if SSRN download counts become a key currency in the academy, scholars will be incentivized to spend more time focused on how to generate SSRN downloads than on creating and disseminating scholarly ideas.

A socialist perspective on sentencing realities

The Socialist Worker online has this intriguing piece entitled "Incarceration Nation" providing a distinctive perspective on crime and punishment in the United States. Here are snippets:

We are often told that the U.S. is the "freest" nation on the planet. But to judge from the U.S. prison system, the exact opposite is the case. The U.S. incarcerates more of its people than any other country on the planet -- not just proportionally, but in absolute terms.... Though the U.S. has just 5 percent of the world’s population, it has an incredible 25 percent of the world’s prison population -- 2.2 million people. Since 1970, the U.S. incarceration rate has increased by 700 percent, and that number is still rising....

Who winds up in prison? The answer is African Americans and Latinos, most of all. They are fully 60 percent of the U.S. prison population today. If current trends continue, one out of every three Black men and one of every six Latino men born in the U.S. today will go to prison at some point in their lifetime. Overall, in 2005, African Americans were 40 percent of all inmates -- three times larger than their proportion in the U.S. population. As sociologist Loïc Wacquant wrote in a 2001 article, "The rate of incarceration for African Americans has soared to astronomical levels unknown in any other society, not even the Soviet Union at the zenith of the Gulag or South Africa during the acme of the violent struggles over apartheid."

Immigrants and women are also increasingly ending up behind bars in the U.S. According to statistics released by the Justice Department last year, between 1995 and 2003, convictions for immigration offenses rose by 394 percent. Between 1980 and 2005, the number of women in state and federal prisons jumped by 873 percent -- from 12,300 to 107,500.

Poverty has always been the defining feature of who is imprisoned in the richest country on earth. Today is no exception. As of 2005, approximately 37 percent of women and 28 percent of men in prison had monthly incomes of less than $600 prior to their arrest....

In a different kind of society -- a socialist society based on meeting people's needs, instead of making profits -- whole categories of "crimes" would simply cease to exist. Immigration violations, for example, would no longer land people in prison in a society that recognized that no human being is illegal. Likewise, drug use would no longer be considered a crime. The money and resources currently spent to incarcerate those suffering from addiction could be put to use providing free treatment instead. More generally, a society that made its priority meeting people’s needs would attack the roots of much crime by working to end poverty and alienation.

Of course, crime would not be magically end overnight. "The point," however, as Paul D'Amato writes in The Meaning of Marxism, "is that, under socialism, society’s surplus wealth would be collectively used to enhance the welfare of all, rather than that of a small group. Why would I steal what was freely available? Such a society may seem too utopian. But as [American socialist James] Cannon said: 'What’s absurd is to think that this madhouse is permanent and for all time.'"

March 16, 2007

Ohio's new Governor issues first clemency denial

Thanks to ODPI and the AP, I see that "Gov. Ted Strickland denied clemency Friday to an admitted killer scheduled to be executed on Tuesday, who would be the first inmate put to death in Strickland's tenure as governor." Here are more details from the AP:

Kenneth Biros, 48, originally was to be executed by injection Jan. 23, two weeks after Strickland took office, but the governor said he needed more time to review the case and those of two other death row inmates. He postponed the executions of all three on Jan. 10....

The Ohio Parole Board recommended against clemency and Strickland agreed. A request to delay the execution is before the 6th U.S. Circuit Court of Appeals in Cincinnati. "We did what we felt like we needed to do in terms of due diligence and did a very careful, thoughtful review of everything and found nothing that we felt would mitigate against the decision of the jury," Strickland said.

As detailed in some posts listed below, I had thought that the new administration in Ohio and the dynamic national politics surrounding the death penalty might lead to a change of course in Ohio's death penalty this year. Clearly Scott at ODPI also had some high expectations, which are now perhaps dashed with as evidenced by this comment: "Strickland Friday afternoon stealth clemency denial: It's going to be the same ol' garbage for the next four + years."

Speaking of ODPI, posts here and here document the confusing and uncertain legal status of on-going lethal injection litigation, which might still disrupt the scheduled Tuesday execution of Kenneth Biros.

A dodgy Booker dodge by the DC Circuit

Dodging responsibility seems to be an art form in Washington DC, so I suppose I should not be surprised to see the DC Circuit today dodge their post-Booker responsibilities in a troubling little opinion in US v. Ventura, 05-3045 (DC Cir. Mar. 16, 2007) (available here). Here's the court's summary of its per curiam work:

Defendant appeals his sentence for a conviction under federal immigration laws. He pled guilty and was sentenced to 93 months incarceration. At the time he was sentenced, the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), was less than two months old. The district court interpreted that case as permitting it to enter a sentence without making a specific finding of the appropriate range under the federal sentencing guidelines. On appeal, defendant advances a number of arguments, including the district court's failure to calculate the applicable guidelines range. In light of Booker's changes to the sentencing regime, we conclude that the district court may have erred, but the ambiguity in the record prevents accurate review. Accordingly, we vacate Ventura's sentence and remand for resentencing.

If this summary does not seem vacuous enough, the rest of the opinion will surely drive the district court a bit crazy. As explained in the opinion, the district judge in Ventura seemed to make an very reasonable decision to consider, but not blindly obsess over, a technical and opaque legal issue in the application of the immigration guidelines in order to instead focus on the factual realities of the case and defendant being sentenced. The DC Circuit, suggesting inaccurately that Booker requires a guideline range to be precisely calculated and not just considered, intimates that the district court committed error, but refuses to say so. Instead, they remand "for resentencing on full consideration of all relevant factors."

By my lights, the district court in Ventura traveled the right post-Booker highway by considering, but not obsessing over, a technical and oblique guideline diktat. But the DC Circuit in Ventura responds by refusing to exercise its post-Booker responsibility of directly deciding whether the district court's sentencing decision-making and decision was reasonable in light of 3553(a). instead, the Ventura decision dodges all the hard issues and instead reinforces the (disturbingly persistent) circuit court message that, even after Booker, mindless obedience to the authority of the guidelines is more important than just and sensible case-specific sentencing decision-making.

Details on USSC hearing

I am pleased to see that the US Sentencing Commission now has made available here the schedule and witnesses for it public hearing on Tuesday, March 20. As I expected and feared, it appears that the entire hearing is going to focus on federal guideline trees and not examine at all the broader Booker forest.

Of course, no matter what the Supreme Court does in Claiborne and Rita, the guideline trees will remain important (and, if you are interested in commentary on all the intricate guideline issues being examined, lots of federal defender commentary is available here). But it sad and remarkable that the USSC has not had a single public hearing or event addressing or even directly examining Booker's import and impact in over two years. Talk about staging Hamlet without the prince.

Will any state formally repeal the death penalty?

There has been, as detailed in posts linked below, a lot of discussion in a number of states about a legislative repeal of the death penalty. But, as this Baltimore Sun article highlights, converting repeal talk into repeal action is still hard. Here are the details:

Efforts to repeal the death penalty in Maryland were dealt an apparently fatal blow Thursday when a key state Senate committee defeated the measure, leaving a court-ordered moratorium on state executions in place and some legislators weighing a study of the issue. Weeks of behind-the-scenes wrangling and lobbying by religious and law enforcement officials culminated Thursday with the bill's defeat in the Senate Judicial Proceedings Committee on a tie vote.

Sen. Alex X. Mooney, the Frederick Republican and devout Catholic who was expected to swing the Senate vote, did not support the repeal after trying unsuccessfully to exempt prisoners who kill again while serving a jail term. He told the committee that he struggled with the choice. "I have decided that a full and absolute repeal of the death penalty under all circumstances is not in the best interest for the common good of Maryland's citizens," he said.

Of course, like so many other aspects of the death penalty, the repeal talk and the failure of repeal action is mostly about politics and symbolism. Most states talking about repeal have not executed any defendants in recent years and seem unlikely, for various reasons, to execute anyone soon despite a failure of repeal efforts.

March 15, 2007

En banc Ninth Circuit recognizes right to die for death row defendants

Last year in this post, I described a Ninth Circuit panel decision in Comer v. Schriro, No. 98-99003 (9th Cir. Sept. 12, 2006) (available here), as essentially deny the right to die to an Arizona death row defendant eager to waive all his appeals and be executed. Today, as well covered by Crime & Consequences and How Appealing, "a fifteen-judge Ninth Circuit en banc panel, by a vote of 14-1, issued a decision that allows the death row inmate to withdraw the pending legal challenge to his death sentence."

The new version of Comer is available here. At C&C, Kent has this take: "The Ninth's increasing willingness to correct fringe panel opinions favoring criminal defendants is a welcome, if overdue, development.... If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth."

UPDATE: Dan Filler here at Concurring Opinions and Rick Garnett here at PrawfsBlawg have great (and very different) commentaries on Comer.

What's up at the USSC? Is Booker on the agenda for its hearing next week?

I have not written much lately about the US Sentencing Commission because it is hard to know what the Commission is (or isn't) doing these days about Booker and the realities of federal sentencing. As noted here and here, the USSC has produced some additional federal sentencing data; but the USSC's recent amendment history spotlights that the Commission still does not seem interested in operationalizing its data and expertise to genuinely improve the post-Booker operation and overall justice of the federal criminal justice system.

The continuing crack guideline debacle is, of course, the most obvious example of the USSC's unwillingness to operationalize its data and expertise into sound sentencing reform. Over the past 12 years, USSC has written three extensive reports and received considerable evidence documenting the harms and inequities of the guidelines' approach to crack/powder cocaine sentencing. And yet, even after Booker, as some judges — properly, in my view — read 3553(a) to call for a new approach to crack cases, the USSC still has not yet taken any tangible steps toward real guideline reform. Tellingly, on the very last page of its 155-page January 2007 federal notice with proposed guidelines amendments (which never mention Booker), the USSC takes the bold and courageous step of inviting still more comments and suggestions on this issue.

Moreover, as informed readers know, the crack guidelines are only the clearest example of dysfunctional aspects of the guidelines. Other drug and loss calculations issues, many criminal history definitions, many cross-references, and the departure guidelines all cry out for post-Booker attention. (And don't even get me started on how the USSC should have responded to Blakely.) Yet, the USSC still has not even in the guidelines acknowledged that Booker was decided, let alone seriously adjust the reality of the guidelines new advisory status.

Of course, the USSC did manage to write to the Supreme Court about Booker to contend in this brief that "the Commission has produced an evolving set of Guidelines, the application of which produces a sentence that is reasonable in relation to Congress's purposes." USSC SCOTUS brief at 5. I am still trying to figure out how this claim made to the Supreme Court jibes with this prior statement about crack guidelines in Chapter 8 of the USSC's 2002 crack report: "After carefully considering all of the information currently available — some 16 years after the 100-to-1 drug quantity ratio was enacted — the Commission firmly and unanimously believes that the current federal cocaine sentencing policy is unjustified and fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act."

Significantly, the USSC "has scheduled a public hearing for 9:00 a.m. on March 20, 2007," but it is still unclear from the USSC website what this hearing will be about, who will be attending, and whether there will be any serious Booker-related analysis or conversations forthcoming from the USSC. Since next week is my Spring Break, I am tempted to make a day trip to DC to see what transpires at the hearing. But I fear the hearing could end up being a lot more aggravating than enlightening.

Context-free ruminations on the federal death penalty

In today's New York Times, US District Judge Frederic Block has this interesting op-ed discussing the federal death penalty. The whole piece raises (and overlooks) a lot of important issues; here is a long snippet:

While New York State does not subscribe to the death penalty for the moment, the federal government does. Over the last few years there has been a surge in death penalty prosecutions authorized by the United States attorney general, both nationwide and in federal cases in New York. But these have resulted in disproportionately few death penalty verdicts, at enormous costs and burdens to the judicial system. A more prudent and realistic approach in the way the government seeks the death penalty is warranted.

Federal death penalty prosecutions reappeared in 1988, and since 1990 the attorneys general have authorized 416 prosecutions nationwide: 180 during the 1990s, an average of 18 per year; and 236 from 2000 to the present, a jump to almost 40 per year. In New York State, 12 were authorized during the 1990s; since then, 30 more.

Given the time required to prepare and defend against a death penalty prosecution, many of those cases have yet to be tried. Of those that have been tried, 50 resulted in death penalty verdicts. But because of the long judicial review process before someone is put to death, there have been only three federal executions, the most notable being Timothy McVeigh's. (One benefit of this protracted process is that 197 state death row inmates have been exonerated.)

In New York, 17 of the authorized cases have been tried, but only one death penalty verdict returned — the recent case against Ronell Wilson, convicted of murdering two police officers. In the Eastern District of New York (covering Brooklyn, Queens, Staten Island and Nassau and Suffolk Counties), where I am a judge, there were three death penalty trials from 1990 to 2005. That number was already matched this year, and there are six more cases scheduled for trial.

What have all these death penalty prosecutions cost the taxpayers, who pay for both defense — the Constitution guarantees the right to counsel for those who, as is usually the case, can't afford it — and prosecution? I recently presided over a trial in which the jury quickly rejected the death penalty. The vouchers submitted by the defense alone exceeded $500,000. Assuming the cost of prosecution to be at least equal (efforts to obtain that figure from the Department of Justice were unavailing), $1 million would be a fair estimate for the trial alone. Had there been a death verdict, an appeal would have added many more dollars. Thus, we have probably spent more than $17 million on the 17 federal death penalty trials in New York State, with one death verdict to show for it. And taxpayers will be footing the $9 million bill for the nine death penalty cases in the Eastern District.

All this as the federal judicial system is struggling with unprecedented budget cuts. In the Eastern District, some 25 assistant United States attorney positions remain unfilled, presumably contributing to a marked reduction (38 percent from 2003 to 2005) in criminal filings. The Probation Department's budget has been cut by $680,000 from the last fiscal year (making it harder to keep tabs on former inmates requiring supervision), and Pre-Trial Services' by almost $100,000 (making it harder to supervise those on bail awaiting trial). And while the Marshals Service has been called upon to provide additional resources and security to handle the surfeit of death penalty cases, its operating budget, exclusive of salaries, has been cut by about 32 percent, from $549,000 to $375,000....

I find this piece fascinating in part because Judge Block attacks the federal death penalty with arguments that are much more appropriate for an attack on the way states approach the death penalty. Let me explain:

1. Prosecutorial discretion: Because of many layers of internal review, there is every reason to believe that federal prosecutors, far more than state prosecutors, already take a "prudent and realistic approach in the way the government seeks the death penalty." Indeed, the up-tick in federal capital cases in New York makes sense in light of the state's disrupted system of capital punishment which is not operational because of a state high court ruling. (Election results suggest that New York state voters do "subscribe to the death penalty," but the state's high court in 2004 canceled that subscription.) As detailed in stories here and here and here, any attack on imprudent pursuit of the death penalty by prosecutors should start in Arizona, where a country prosecutor has more pending capital cases in a single county that the federal government has pending nationwide.

2. Costs: Though budgets are tight all over, the money spent on federal death penalty prosecutions is tiny compared to so many other federal expenditures. Judge Block's numbers suggest federal taxpayers may have spent roughly $350 million on federal death penalty prosecutions over the last two decades; but federal taxpayers now pay roughly $350 billion every year on interest payments servicing the debt. In other words, we've spent roughly 0.1% of what we spend servicing the national debt each year on the federal death penalty over the last 20 years. Relatedly, lots of federal money is spent on federal habeas review of state death sentences (which all have already been repeatedly reviewed by state courts). Would Judge Block be eager to cut these expenses though further restrictions on capital federal habeas actions. Again, cost is an important capital consideration, but much more so in state systems with smaller budgets and larger caseload than in the federal system.

I stress these points because, as detailed in posts below, I now think the best modern approach to the death penalty would be to make capital punishment an exclusively federal matter so that we do not have the current bizarre and inconsistent state-by-state adjudication (and then federal habeas review) of which horrible killers should live and which horrible killers should die.

Sentencing means always watching out how you say you're sorry

This AP story spotlights an interesting case due for sentencing on Thursday in Virginia state court:

More than two decades after he sexually assaulted a fellow student at a University of Virginia party, a man who later apologized to his victim as part of the 12-step Alcoholics Anonymous program faces sentencing for the crime. William Beebe was to appear in court Thursday to learn his punishment for attacking Liz Seccuro in 1984. The case was revived in 2005 after Beebe wrote Seccuro a letter of apology in an attempt to make amends for the assault.

Beebe, 42, of Las Vegas, originally was charged with rape and object sexual penetration and could have faced a sentence of life in prison if convicted. But in November, he entered into a plea agreement with prosecutors and pleaded guilty to a lesser charge of aggravated sexual battery. Prosecutors have recommended a sentence of two years in prison.

The plea agreement was reached after investigators uncovered new information suggesting Seccuro was attacked by more than one person that night. Authorities hoped Beebe could help them in their investigation, but no additional arrests have been made....

In 2005, Beebe wrote Seccuro a letter of apology as part of AA's recovery program, whose ninth step calls on alcoholics to make amends to those they have harmed — unless doing so would cause further injury. In an exchange of e-mails that ensued, Beebe wrote: "I want to make clear that I'm not intentionally minimizing the fact of having raped you. I did."

Seccuro eventually called Charlottesville police to report what had happened. There is no statute of limitations on felonies in Virginia, and Beebe was arrested in Las Vegas. Seccuro said that she reported the assault to university officials in 1984 but that a dean and the campus police treated her dismissively. Seccuro, who says she has forgiven Beebe for assaulting her, said an apology is not a substitute for punishment. The attack changed her life dramatically, she said, and she deserves to finally see justice served.

California sentencing commission proposal moving forward

As detailed in this Sacramento Bee article, proposals to create a sentencing commission in California are moving forward, but still face considerable political obstacles:

Democrats in the state Senate filled in the blanks Wednesday on their version of a sentencing commission by proposing a panel with the power to set prison terms that could be amended only by a two-thirds vote of the Legislature.

The Senate Democrats' take on a sentencing commission differs markedly from the one offered by Gov. Arnold Schwarzenegger in his 2007-08 budget. Rather than adjusting the length of terms, the Republican governor's commission would only make recommendations on sentencing policy and devote its first year of research to the state's much-criticized parole system.

Jointly written by state Senate President Pro Tem Don Perata of Oakland and Senate Majority Leader Gloria Romero of Los Angeles, Senate Bill 110 proposes the creation of a 20-member commission that would include the chief justice of the state Supreme Court, the attorney general, the corrections secretary and an assortment of judges, a prosecutor, a public defender, an inmate rights lawyer and others selected by the Legislature and the governor....

SB 110 came in for early criticism Wednesday from Republican Assemblyman Todd Spitzer of Orange, the criminal justice point man for his caucus. "There's not one Republican, and I would be surprised if there were many Democrats who are not soft on crime who would vote for that bill," Spitzer said. Republicans have criticized the sentencing commission concept as taking authority away from the Legislature and for possibly paving the way for some inmates to get out of prison early.

March 14, 2007

A Republican call for AG Gonzales to be fired

As detailed in this CNN article, "Senator John Sununu of New Hampshire on Wednesday became the first Republican lawmaker to call for Gonzales' resignation." Here are highlights from the Senator's official press release:

During the next two years, our nation must address critical questions affecting the investigation, pursuit, and prosecution of terrorism at home and abroad. In this effort, we must have a strong, credible Attorney General who holds the confidence of Congress and the American people.

I do not believe Alberto Gonzales can fill that role. The President should fire the Attorney General and replace him as soon as possible with someone who can provide strong, aggressive leadership prosecuting the war on terrorism, running the Department of Justice, and working with the President and Congress on important homeland security matters.

Now Gonzales, amid calls for his resignation by many Democrats and even a Republican senator, John Sununu of New Hampshire, has said he has no plans to leave his post. He has stepped up appearances on television and vowed to make Justice more accountable.

President Bush has expressed support for Gonzales, but even some of the attorney general's closest allies are worried about fallout from the firings. "I have known (Gonzales) for a long time … and I'm concerned," said Sen. John Cornyn, R-Texas. "The appearances are troubling. The executive branch owes it to Congress to be forthcoming when Congress asks for information and this has not been handled well. But in Texas we believe in having a fair trial and then we have the hanging. We don't have the hanging first and then have the fair trial later."

Among many other highlights, this Zimbardo post reviews "ten lessons from the Milgram studies" concerning "what strategies can seduce ordinary citizens to engage in apparently harmful behavior." I cannot help but notice that one could find indirect expression of many such "strategies" in the functional operation of severe sentencing rules that demand imposition of extraordinary prison terms seemingly without concern for substantive, case-specific notions of justice. Consider these entries from the Zimbardo list of Milgram's obedience to authority lessons:

Present basic rules to be followed that seem to make sense before their actual use but can then be used arbitrarily and impersonally to justify mindless compliance. The authorities will change the rules as necessary but will insist that rules are rules and must be followed....

Alter the semantics of the act, the actor, and the action — replacing unpleasant reality with desirable rhetoric, gilding the frame so that the real picture is disguised....

Create opportunities for the diffusion of responsibility or abdication of responsibility for negative outcomes....

Gradually change the nature of the authority figure from initially "just" and reasonable to "unjust" and demanding, even irrational....

Iraq talking about death penalty abolition

According to this Reuters article, Iraq's human rights minister is talking about Iraq abolishing the death penalty. Here's the basics:

The government of Iraq, which was heavily criticised internationally for the way it executed Saddam Hussein, wants to abolish the death penalty, its human rights minister said on Wednesday.

The first step would be to limit capital punishment, which was re-introduced over two years ago to combat spiralling criminal violence, to the most extreme cases such as genocide and crimes against humanity, Wijdan Michael told the United Nations Human Rights Council. "We are working at the present moment in order to pave the way to eliminate capital punishment in Iraq, after restricting it to the largest possible extent," Michael said, speaking through an interpreter.

Images of the country's former dictator being taunted as he awaited execution in December, and the accidental decapitation of his half-brother and aide Barzan Ibrahim al-Tikriti during a January hanging, caused an outcry.

In this post a few months ago, I wondered whether and how execution problems might impact modern debate over the death penalty. Interestingly, ugly execution stories may be having more of an impact on death debates in Iraq than in Texas.

Interesting new report from The Sentencing Project

The Sentencing Project has released a new study reporting growing momentum for sentencing reform designed to limit prison population growth and reduce ballooning corrections budgets in the United States.

Changing Direction? State Sentencing Reforms 2004-2006 finds that at least 22 states have enacted sentencing reforms in the past three years. The report further identifies that the most popular approach for reducing prison crowding -- implemented by 13 states -- was the diversion of low-level drug offenders from prison to drug treatment programs. Additional policy changes included:

expansion of alternatives to incarceration for non-violent offenders;

parole and probation reforms designed either to reduce time served in prison or to provide supervision options to reduce the number of revocations to prison; and

Changing Direction? State Sentencing Reforms 2004-2006 argues that in order to build on these positive legislative developments, lawmakers must continue to enact evidence-based criminal justice policies. Recommendations of The Sentencing Project urge that policymakers:

expand the use of drug treatment as a sentencing option;

utilize intermediate sanctions for technical violations of parole and probation;

Death for child molesters moves forward in Texas

As detailed in this article, the Texas legislature continues to move forward on a bill to make some child sex offenders subect to the death penalty. Here are specifics:

Senate panel approved a bill allowing the death penalty for repeat child sex offenders Tuesday but said major work remains on the proposal. Senate Bill 5, the "Jessica's Law" urged by Lt. Gov. David Dewhurst, now advances to the full Senate. The law is named for Jessica Lunsford of Florida, a 9-year-old girl who was abducted, raped and killed.

The Senate Criminal Justice Committee vote was 5-1 with one member abstaining. Texas Attorney General Greg Abbott joined Dewhurst at the hearing in supporting the bill, which calls for a minimum 25-year sentence for violent child sex offenses and life without parole or death for second offenses.

Abbott brushed off concerns that the U.S. Supreme Court might find the death penalty unconstitutional for crimes that do not end in death. Noting that the court barred the death penalty in a rape case 30 years ago, Abbott said he sees a "greater chance" the high court may allow the death penalty for repeat, felony sexual assault against children. "I would proudly and personally go up to the United States Supreme Court and defend the constitutionality of this case, this legislation, which I think is the right legislation for the state of Texas,"said Abbott....

Prosecutors and others who testified against the measure fear that families will be reluctant to turn in friends or relatives, who reportedly commit nine out of 10 sexual offenses against children.

A caseload calm before another Sixth Amendment storm?

Thanks to How Appealing here, I see that the Administrative Office of the U.S. Courts has issued this press release, headlined "Fiscal Year 2006 Caseloads Remain At High Levels," which discusses the particulars of 2006 federal court caseloads. The press release details that, after record high caseload in 2005 due partially to the impact of Blakely and Booker, district and circuit caseloads settled down just a bit (though still remained quite high).

I doubt that the Cunningham ruling in January or pending reasonableness cases of Claiborne and Rita will have nearly the dramatic caseload impact of Blakely and Booker. Nevertheless, if the Supreme Court ends up scrambling up the modern Sixth Amendment story yet again through its work in Claiborne and Rita, federal courts should gear up for yet another wave of increased litigation.

Cunningham fix moves forward in California

As detailed in this Sacramento Bee article, a propsed statutory fix in response to Cunningham is moving forward in California's legislature:

A bill to stabilize California's criminal sentencing system that was knocked for a loop by a recent U.S. Supreme Court decision passed the Assembly Public Safety Committee on a 5-2 vote Tuesday. Senate Bill 40 cleared the panel, which in the past has killed controversial criminal justice bills, after members heard from its author, state Sen. Gloria Romero, D-Los Angeles, and prosecutors representing her home county that the alternative to its passage would mean "chaos" in the courts.

"I understand the reluctance and the concern of some, but reluctance and concern translates into courts functioning in a state of disarray and justice not being served," Romero said in an interview after the hearing. "I do feel confident that (the full Assembly) will understand that the stakes are too high to sit on our thumbs and do nothing."

The bill was prompted by the Supreme Court's ruling on Jan. 22 that California's determinate sentencing law, in place since 1977, violated the Constitution. The state's sentencing structure allows judges to impose terms from a range of three options. But the high court struck down the so-called "triad," saying that judges, in imposing the toughest of the three terms, were not submitting to the jury the factual underpinnings of their decisions. SB 40, written in response to the ruling, would give judges the discretion to pick any of the three terms in the range of options without having to make any factual findings. The bill also contains a Jan. 1, 2009, sunset provision.

Romero's bill sailed through the Senate on a 36-1 vote last month, but it ran into a rumble Tuesday, due in large part to opposition expressed by San Francisco Public Defender Jeff Adachi. Adachi said the bill as written would give judges too much discretion, with the lack of uniformity from jurisdiction to jurisdiction likely to result in sentencing disparities. Adachi said ethnic minorities and the poor are likely to face disproportionately stiffer sentences under the terms of SB 40. Instead of SB 40, Adachi told the committee he favors a system in which prosecutors would be required to conduct a second mini-trial to determine the length of the defendant's sentence after obtaining the conviction. The San Francisco public defender called Tuesday's vote "extremely unwise." "The reason we have such bad criminal justice policy in California is because people do what's politically expedient and not what's right," Adachi said afterward. "At least they should have studied what the alternatives were."

Because of the sunset provision in SB40 and the possible constitutional dimension to the Supreme Court's pending decision in Claiborne and Rita, I actually think SB40 might actually create more chaos than it will solve. But California's sentencing and correction system is so messy right now, it's not clear exactly how any Cunningham response would help or hurt California sentencing.

March 13, 2007

A constitutional right to post-conviction DNA testing?

How Appealing has the highlights here of a notable Second Circuit ruling in McKithen v. Brown, No. 03-0168 (2d Cir. Mar. 13, 2007) (available here). Here is the court's official summary:

Appeal from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.), dismissing under Rule 12(b)(1) plaintiff's claim brought pursuant to 42 U.S.C. § 1983. Plaintiff asserts a post-conviction constitutional right of access to DNA testing which, he asserts, might exonerate him. The district court dismissed the suit, citing the Rooker-Feldman doctrine. We hold (1) that the Rooker-Feldman doctrine does not apply to plaintiff's suit; (2) that plaintiff’s suit is not barred by the rule of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994); and (3) that defendant waived any possible defense of claim preclusion, and that it would be inappropriate for this Court to raise the defense sua sponte. We therefore vacate the district court's judgment and remand the case to that court, for its consideration in the first instance of whether there exists a constitutional right on the basis of which plaintiff might obtain his requested relief, and if such a right exists, whether, once the district court defines the contours of that right, the defense of issue preclusion might apply.

Libby's economic version of the trial penalty

I have often written about the sentencing dimensions of the trial penalty (examples here and here), i.e., the large sentence increases that defendants who opt to exercise their right to trial will often face. But this Bloomberg news article, which is focused on funds being collected for Lewis Libby's defense, discusses a more economic trial penalty already being suffered by Libby:

Libby's bills, including an expected appeal, will run into the millions, defense lawyers say. Three top criminal lawyers are spearheading his defense. Lead attorney Ted Wells charges about $800 an hour.

"You would have to be an extraordinarily wealthy person for an ordeal like this not to ruin you financially,'' said Bradford Berenson, a white-collar crime specialist at the Sidley Austin law firm in Washington and a former White House lawyer for President George W. Bush. "An overall estimate of $10 million for this whole mess is not unreasonable.''

Though he spent almost five years working in the White House, Libby, 56, is still wealthy from his days as a private attorney. A federal ethics form he filed in 2005 after his indictment and resignation shows his investments valued somewhere between $6 million and $18.5 million....

Libby is represented by three main attorneys: Wells of the New York-based Paul, Weiss, Rifkind, Wharton & Garrison firm; William Jeffress of Baker Botts in Washington; and San Francisco attorney John Cline of Jones Day. There have been about a dozen lawyers working on the case and attending the trial.

Wells, in an e-mail, declined to comment on fees for the case. He said the legal team will continue to represent Libby in the appeals process. Meanwhile, Libby's fundraisers, by necessity, will pick up the pace. Said Washington defense attorney Victoria Toensing: "Not many people have seven figures sitting around in a bank account, particularly those that have been in government service for a long time.''

It is interesting to speculate, aided by hindsight, what it would of cost Libby to plead guilt months ago. He certainly would be in a better position for sentencing and economically. But, of course, I am poorly positioned professionally to complain about a lot of monies being paid to criminal lawyers. I like to be able to tell my students that not all criminal defense attorneys work for slave wages.

More AG heat from a judicial nemesis

I just got set this link to a new AP piece about the brouhaha surrounding the US Attorney purge and AG Gonzales. I though folks who follow sentencing debates would be interested in one particularly loud voice in the continuing debate:

Rep. James Sensenbrenner of Wisconsin, the senior Republican on the House Judiciary Committee, called the Justice Department's management dysfunctional for sending Principal Associate Deputy Attorney General Will Moschella to testify before the panel last week "without knowing all the facts."

"They're going to have to come up with some answers," Mr. Sensenbrenner said Tuesday in an interview with the Associated Press. "If they don't, they're going to lose everyone's confidence."

"What I'd like to hear is the truth," he said, complaining about the Justice Department's different explanations for the dismissals. If that record is not corrected, Sensenbrenner said, "then the Justice Department and the attorney general himself are going to die by a thousand cuts."

Defendant-appellant Marshall Zolp appeals the district court's sentence following his plea of guilty to federal securities fraud. Zolp challenges two aspects of his sentencing proceedings: (1) the district court's factual finding that the involved stock was "worthless" after the fraud came to light, and (2) the district court's decision to consider Zolp's cooperation only as part of the larger analysis under 18 U.S.C. § 3553(a) and not as part of the court's advisory guidelines calculation. On the first issue, we vacate and remand. On the second issue, we affirm.

Sex offender work restrictions in my backyard

The NIMBY ("not-in-my-backyard") phenomenon has risen to new heights in my own backyard: as detailed in this Columbus Dispatch article, a central Ohio community has "become the first city in Ohio — and one of just a few nationally — to limit not only where sexual offenders live, but also where they work." Here are more details:

Upper Arlington's new law would beef up current state law that bans sexual offenders from living within 1,000 feet of schools to encompass other areas. Then it tacks on a limit for working, as well. The new law bans offenders from living and working within 1,000 feet of not just schools, but also day-care centers, parks, playgrounds, swimming pools and libraries. The restricted areas cover about two-thirds of Upper Arlington.

Councilwoman Linda Mauger made a motion to strike the employment restriction altogether, saying, "I would rather see that money put into education and enforcement." And Councilman Donald B. Leach Jr., another critic of the work restriction, said research has shown that such laws are "neither effective nor enforceable." Councilman Timothy S. Rankin, the law's sponsor, countered: "I’m convinced this law is definitely enforceable and will be enforced."

No details were given concerning how the law will be enforced. Council President Edward F. Seidel Jr. said it's up to police and the city attorney to work it out. There was no discussion about jobs such as pizza-delivery drivers and gas-meter readers, whose jobs might not be located in the city but bring them into Upper Arlington. The law does say that the restriction applies to anyone who works either seven consecutive days in Upper Arlington, or 30 times over a year....

Two states, Alabama and Georgia, and a small number of cities nationwide currently prohibit offenders from working or living within their boundaries. Brenda Schwandt, president of the Upper Arlington Chamber of Commerce, said eight people responded to a recent e-mail survey of 481 businesses in and near the city concerning the new law. The chamber voted last week to not take a stand on the issue, she said....

Before the meeting, Grandview Heights Councilman Stephen Von Jasinski asked where banned Upper Arlington laborers will end up. "It sounds like everyone wants them to be in somebody else’s backyard and not their own," he said. "I don't know why Grandview should be the recipient of all the employees Upper Arlington may not want." Being small, Grandview Heights is largely already covered by state law that prohibits predators living within 1,000 feet of schools. Von Jasinski also worries about the competitive response by neighboring communities. "You're literally saying people have no right to be anywhere when you take this to the full extent of the law. "When do we create that leper island and just throw that key away?"

Any reader thoughts about the constitutionality and/or likely efficacy of this sex offender work restriction? Anyone think the Supreme Court will have to weigh in on the constitutionality of (and possible limits on) all the sex offender restrictions sooner rather than later?

Make-or-break week for Ohio's death penalty

After new Governor Ted Strickland issued an initial set of reprieves back in January (details here and here), Ohio is scheduled to have its first execution under its new executive administration a week from today. Significantly, Gov. Strickland is scheduled to give his first State-of-the-State address at noon tomorrow, and ODPI notes here that rumors are spreading about a possible statement regarding Ohio's death penalty during this address.

As I have suggested before, I think Ohio serves as an important bell-weather state is the ever-evolving debate over the death penalty. I am very eager to see (1) if Gov. Strickland — who might well have national political aspirations — might do something bold in this arena, and (2) the local and national political reactions if he does.

UPDATE: ODPI has more coverage here of what might be expected in Gov. Strickland's first State-of-the-State address, including a link to a local article in which Strickland indicates that, in his developing budget plans, "he has found 'a few ways to save significant sums of money' and 'lots of ways to save small amounts of money.'" It strikes me that a move away from a litigation-heavy punishment like the death penalty might be a way to save at least a small amount of Ohio's money.

What's the real-world fall-out of the US Attorney purge?

As detailed in this New York Times article, the "White House was deeply involved in the decision late last year to dismiss federal prosecutors, including some who had been criticized by Republican lawmakers." As this story continues to have legs, I continue to wonder if it has any direct or indirect impact in the day-to-day operation of the federal criminal justice system.

I would be eager for readers to use the comments to indicate whether they have seen any tangible change in the behavior or attitudes of federal prosecutors since this story broke. I often suspect that whenever the actions of Main Justice gives federal prosecutors a black eye, assistant US Attorneys feel the impact when walking into court and seeking the respect of, and pro-government rulings from, their local federal judge.

Can anyone report whether there is some real on-the-ground blow-back from the US Attorney purging story?

March 12, 2007

This Bloomberg commentary by Ann Woolner, entitled "Libby's Case Tests Bush's Parsimony With Pardons," provides lots of valuable context for all the Libby pardon talk and also the debate over crack sentencing terms in the federal system. Here are snippets:

Willie Mays Aikens, 52, has done a lot of things in his life. In 1980 he hit two home runs in each of two World Series games, giving the Kansas City Royals their first Series win and himself a place in baseball's Hall of Fame. He later took up illegal drugs, became addicted to crack and pleaded guilty to trying to buy it in 1983. Another drug conviction in 1994, for selling 63 grams of crack, sent him away for 20 years.

He would have been freed long ago if the cocaine had been powder, but he's in the Atlanta federal penitentiary more than 12 years later. President Bill Clinton turned him down for a pardon. So did President George W. Bush. His lawyer, Margaret Love, is still trying. In the meantime, she says, she won't mind if Bush pardons Lewis "Scooter"' Libby, whose perjury and obstruction of justice convictions ignited speculation that the president will spare him from prison. "If pardoning Libby resulted in a more generous exercise of the power for ordinary people, then I would certainly favor it,'' Love said in a telephone interview from Washington.

So far, Bush has been the least forgiving of any president in almost 200 years. Not since Thomas Jefferson has a president exercised the power to pardon so rarely. In six years, Bush has granted 113 petitions for pardons or commutations of sentence, or fewer than 19 a year on average. In this arena, Bush broke his father's record for parsimony, however narrowly. During his four years as president, George H.W. Bush granted 77 petitions. Six of them were for members of his own administration....

The list of the forgiven over the years is 28,500 names long. A Puerto Rican nationalist who tried to kill President Harry Truman won clemency, and so did the physician who helped Abraham Lincoln's assassin escape, Samuel Mudd. Yankees owner George Steinbrenner was pardoned for illegally contributing to the campaign of Richard Nixon, who was himself pardoned before he was even charged with the Watergate crimes that sent many of his aides to prison. George Washington forgave insurrectionists in the Whiskey Rebellion. Andrew Johnson pardoned Confederate rebels. And Jimmy Carter granted amnesty to those who dodged the Vietnam War draft....

Some 1,000 people betting through an online futures market are giving Libby a 62 percent chance of getting a pardon before Bush's term is out, according to John Delaney, who runs Intrade.com. The Washington Post column "In the Loop" has a contest going in which readers can predict the date of the pardon. Love herself has entered. She picked Dec. 24, 2008, when, like his father 16 years earlier, Bush will be headed out the door. Elections will be over, and the generosity of the season will be at full height. Unless Bush intervenes, Aikens will still have years to serve.

The Sentencing Project has this page providing more background on Willie Mays Aikens' sad story. Among other details, the page includes a link to this letter from baseball Hall of Famer Cal Ripken, Jr. urging the Pardons Attorney at the Department of Justice to endorse clemency for Aikens.

Why true liberals ought to embrace Parker

As suggested in this post, I think the DC Circuit's blockbuster opinion in Parker (available here), which finds part of DC's gun laws violate an individual's Second Amendment rights, should be embraced by any fan of individual liberties. These comments by Clark Neily, an attorney for the plaintiffs in Parker in this NRO mini-symposium, effectively reinforces my basic take on the case:

I subscribe to the currently unfashionable view that the Founding Fathers envisioned a sea of liberty with islands of government power — not the reverse. It is my hope that the Parker lawsuit will not only vindicate the right of law-abiding citizens to possess functional firearms in their homes, but that it will remind conservatives, in particular, about the excesses of majoritarianism and the critical role of judges in combating it.

As a constitutional litigator, I am troubled by the ascendancy of so-called "judicial minimalism" among both liberal and conservative jurists. Following the Supreme Court's appalling Kelo decision, for example, it was dismaying to see conservative bloggers like Jonathan Adler and John Hinderaker (and even the iconic Judge Alex Kozinski) supporting the liberal justices' view that courts should interpret the public use clause of the Fifth Amendment as imposing no meaningful limits on government's power to redistribute private property.

In federal courts today, there is a presumption of government power, not liberty. I think that's exactly backwards. Many conservatives will embrace Parker because it vindicates a freedom they hold dear. If it reacquaints them with the important role of judges in protecting liberty and containing government power, so much the better.

— Clark Neily is an attorney at a Washington, D.C.-area public interest law firm. In his private capacity he is co-counsel for the plaintiffs in Parker v. District of Columbia.

I often view severe and extreme gun laws in the same way I view severe and extreme drug laws and/or severe and extreme consentual sex laws: as a means for governments to (over)regulate potentially (but not always) risky behavior that some people just do not like. I am all for effective regulation of significant risks — which is why I favor tough sentences for drunk driving — but I think severe and extreme laws to combat only potential risks is a very dangerous way to structure government power.

The limits of electronic monitoring

Perhaps it is a lack of sleep that is drawing me to the more sensational stories today, such as this one from the AP spotlight the limits of one particular form of technocorrections:

An accused child molester cut off his electronic monitoring bracelet, then took a limousine to Chicago to appear on "The Jerry Springer Show," authorities said.

A judge set bail Friday at $50,000 for Mario Sims, 21, who had been awaiting trial on 2004 charges of child enticement and first-degree sexual assault of a child.... "A significant bond is legally necessary given the fact he absconded, admittedly for one of the more unique reasons I’ve heard in my time on the bench," the judge said.

True sentencing March Madness

Today is, of course, the start of NCAA bracket week around the nation. (If you are looking for new bracket rackets, check out bracketscience.com.) Besides being pleased that my Buckeyes looked strong winning the Big 10 tourney and got a well-deserved #1 seed, I am thinking about what standard to use for my traditional "wacky bracket."

Every year, in addition to some completing a few serious brackets, I always fill out one bracket by applying some wacky selection rule. (For example, one year I always selected the school geographically closer to the city that shares a name with one of my kids.) Tellingly, my "wacky bracket" often out-performs some of my serious brackets.

For true sentencing geeks like me, on-going sentencing debates provide great "wacky bracket" opportunities. For example, death penalty abolitionists can select schools from jurisdictions without the death penalty or states struggling with lethal injection protocols. (Picking only abolitionist jurisdictions might lead to a Wisconsin-Georgetown final game, whereas a lethal injection approach could set up a Florida-North Carolina final.) Similarly, non-capital sentencing gurus might favor states most impacted by Blakely over those less impacted by Blakely. This approach could set up a UCLA-Ohio State final or maybe a Blakely ground-zero match-up of Washington State-Gonzaga.

Egyptian blogger sentence upheld

I rarely cover international sentencing developments, but this AP story cuts close to home:

An Egyptian appeals court on Monday upheld the four-year prison sentence given to an Egyptian blogger who criticized conservative Muslims and was convicted of insulting Islam and Egypt's president, court officials said. Abdel Kareem Nabil's sentence last month had been widely condemned by local and international rights groups as a bid to curb free expression.

Nabil, a 22-year-old former student at Cairo's Al-Azhar University, had been sentenced to three years in prison for insulting Islam, the Prophet Muhammad and inciting sectarian strife, and another year for insulting President Hosni Mubarak.

Are better crack sentences on the horizon?

This USA Today article, entitled "Lawmakers consider lessening crack penalties," provides some encouraging news for those hoping for congressional action on crack sentencing. Here are a few details:

Momentum is building in Congress to ease crack cocaine sentencing guidelines, which the American Civil Liberties Union and other critics say have filled prisons with low-level drug dealers and addicts whose punishments were much worse than their crimes.

Federal prison sentences for possessing or selling crack have far exceeded those for powder cocaine for two decades. House Crime Subcommittee chairman Robert Scott, D-Va., a longtime critic of such sentencing policies, plans to hold hearings on crack sentences this year. In the Senate, Republican Jeff Sessions of Alabama is drawing bipartisan support for his proposal to ease crack sentences. "I believe that as a matter of law enforcement and good public policy that crack cocaine sentences are too heavy and can't be justified," Sessions says. "People don't want us to be soft on crime, but I think we ought to make the law more rational."...

Sessions' bill would lessen the sentencing disparity by increasing punishments for powder cocaine and decreasing them for crack. Crimes involving crack would still draw stiffer sentences, but the difference would not be as dramatic. The bill has drawn support from Democratic Sen. Ken Salazar, a former state attorney general from Colorado, Democratic Sen. Mark Pryor, a former state attorney general from Arkansas, and Republican Sen. John Cornyn, a former Texas Supreme Court justice and attorney general. In the House of Representatives, two bills calling for Congress to equalize the sentences for powder cocaine and crack were filed in January.

"We're going to address all the mandatory minimums," said Scott, chairman of the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security. "The crack cocaine is probably the most egregious because of its draconian number of years for relatively small amounts." Opposition to weaker sentences has come from police, prosecutors and law enforcement agencies such as the Justice Department and the Drug Enforcement Administration.

UPDATE: Marc Mauer and Kara Gotsch of The Sentencing Project have this new commentary, entitled "Seeking Justice In The Drug War," that calls for congressional action on crack sentencing. Here is the final paragraph:

With champions for criminal justice reform like Rep. John Conyers,D-Mich., and Senator Patrick Leahy, D-Vt., heading the judiciary committees in Congress, the opportunity to redress the misguided crack sentencing policy is upon us. Hearings before both committees are long overdue in this arena and would provide the necessary evidence to dispel the misinformation and hysteria that clouded the public debate on crack cocaine in the past. These myths have done a disservice to developing responsible drug policy, while exacerbating the tragic racial disparities that plague our prison system. Now is the time for congressional attention and action.

March 11, 2007

Second Amendment, gun enhancements, constitutional doubt and Angelos

I have just read the DC Circuit's blockbuster opinion in Parker (available here), which holds that the District of Columbia's gun control laws violate an individual's Second Amendment rights (first noted here). As Jeralyn at TalkLeft spotlights here, any fan of individual liberties ought to be a fan of Parker. And, as Eugene Volokh spotlights here, it will be intriguing to watch how Parker plays out politically in the months ahead. (I am wondering if any leading Democratic nominee will be smart enough to embrace Parker or if any leading Republican nominee be foolish enough to condemn it.)

Of course, I read Parker with an eye on sentencing issues, particularly wondering what Parker could mean for some sentencing enhancements if courts were to seriously enforce the right of "keeping a handgun in the home" recognized in Parker. Specifically, in the wake of Parker, defendants facing sentencing enhancements based on having guns in their homes likely can and should raise constitutional objections based on the Second Amendment. And courts, applying constitutional doubt doctrines, probably should now be more cautious about broad applications of sentencing enhancements based on having guns in the home.

The notable case that came to mind as I thought about these issues is the case of Weldon Angelos (basics here, early commentary here and here). As I recall, one of 25-year sentence enhancements in the Angelos was premised solely on guns found in Weldon's home. If Weldon Angelos had an individual Second Amendment right to keep these guns in his home, isn't the 25-year sentence enhancement he endured as a result of exercising this right constitutionally suspect?

UPDATE: The folks at The Volokh Conspiracy have taken up this issue and provide a lot of on-point analysis here and here. I generally share the view that Second Amendment arguments against gun sentence enhancements still face an uphill battle, but that reality should not prevent counsel from raising these issues (and courts from addressing these issues head-on).

A Libby pardon and DOJ guidelines

A helpful reader pointed me to this effective Newsweek article spotlighting that President Bush would have to skirt the Justice Department's internal guidelines in order to grant Lewis Libby a pardon. Here is a snippet from the piece:

[T]here's one significant roadblock on the path to Libby's salvation: Vice President Dick Cheney's former chief of staff does not qualify to even be considered for a presidential pardon under Justice Department guidelines.

From the day he took office, Bush seems to have followed those guidelines religiously. He's taken an exceedingly stingy approach to pardons, granting only 113 in six years, mostly for relatively minor fraud, embezzlement and drug cases dating back more than two decades. Bush's pardons are "fewer than any president in 100 years," according to Margaret Love, former pardon attorney at the Justice Department.

Following the furor over President Bill Clinton's last-minute pardon of fugitive financier Marc Rich (among others), Bush made it clear he wasn’t interested in granting many pardons. "We were basically told [by then White House counsel and now Attorney General Alberto Gonzales] that there weren’t going to be pardons — or if there were, there would be very few," recalls one former White House lawyer who asked not to be identified talking about internal matters.

The president has since indicated he intended to go by the book in granting what few pardons he'd hand out — considering only requests that had first been reviewed by the Justice Department under a series of publicly available guidelines. Those regulations, which are discussed on the Justice Department Web site, would seem to make a Libby pardon a nonstarter in George W. Bush's White House. They "require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application," according to the Justice Web site. Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful. "The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to ... victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication," the Justice Web site states.

Of course, there is nothing that requires Bush to follow these guidelines in reviewing a pardon for Libby (whose lawyer, Ted Wells, stated on the courthouse steps Tuesday that he intended to push for a retrial, adding that he has "every confidence that Mr. Libby will be vindicated.") As Love, the former pardon attorney, points out, "the president can do whatever he wants."

NY Times urging ouster of AG Gonzales

The New York Times today has this editorial, entitled "The Failed Attorney General," which urges President Bush to dismiss AG Alberto Gonzales. Here is how it begins:

During the hearing on his nomination as attorney general, Alberto Gonzales said he understood the difference between the job he held — President Bush's in-house lawyer — and the job he wanted, which was to represent all Americans as their chief law enforcement officer and a key defender of the Constitution. Two years later, it is obvious Mr. Gonzales does not have a clue about the difference.